Resident Involvement in Class 1 Development Appeals

Resident participation in Class 1 appeals is usually limited to providing written submissions “made in accordance with this Act or the regulations”, pursuant to s 4.15(1)(d) of the EPA Act, which the consent authority (Council) must consider in assessing an application.

It is then for Council’s experts to identify which, if any, of the matters raised by the resident objectors (objectors) the Council also contends justify the refusal of the application.

Expert witnesses in Court proceedings are governed by rules of the Court, whether they are Council officers or external consultants. Experts owe their primary duty to the Court, and not to the residents, objectors or the Council.

Council will only raise contentions (reasons for refusal) that are justifiable on planning grounds, such as a non-compliance with the relevant development controls which results in unacceptable impacts on amenity.

Council will set out the reasons why it says a development application or a modification application should be refused in a document called a Statement of Facts and Contentions (SOFAC), which is filed at the commencement of proceedings. Matters raised by objectors in their written submissions will be raised as matters of public interest.

Objectors who make a submission about a development application or modification application are not parties to the appeal. Objectors will not be parties to an appeal unless there has been a specific order of the Court that they be joined as a party to proceedings pursuant to s 8.15(2) of the EPA Act, or by the Court allowing them to participate as though they are a party to the proceedings. The Court will not readily make such orders and will only do so if the objector can establish that he or she can raise an issue which should be considered by the Court, but which would not be sufficiently addressed if the order was not made.

Council will notify objectors of the relevant Court dates and a copy of the SOFAC filed by Council will be provided at that time.

Section 34 Conciliation Conferences

Development appeals will generally be listed for a mandatory conciliation conference pursuant to s 34 of the LEC Act (s 34 conference).

The s34 Conference is a forum for parties (with the assistance of a Commissioner) to identify the issues in dispute, develop options, consider alternatives and endeavor to reach an agreement.

The s34 conference is a confidential negotiation between the parties (that is, the applicant and the Council). However, the Court allows a maximum of six (6) resident objectors to address the parties at a site inspection at the beginning of the conciliation conference. Council’s solicitors will write to resident objectors to advise them of the date of the s 34 conference.

Resident objectors can take the Commissioner and the parties to their property, or they can speak to their concerns from outside the development site. Any residents wishing to address the parties at the site inspection should have regard to the Court’s requirements as set out in the Conciliation Conference Policy

Council’s solicitors will take notes of oral submissions and these may be tendered in evidence in the event the matter proceeds to hearing.

Once the parties have heard from resident objectors, the parties will continue the conciliation process in private.

The Commissioner will not decide the outcome of the case in the conciliation phase.

The Court requires the applicant and the Council to negotiate in good faith and to reach a compromise solution if possible.

As part of the conciliation process applicants will often seek to rely on amended plans and documents in an attempt to address the concerns raised by Council.

The parties may reach agreement if the Council’s experts are satisfied that the contentions in the SOFAC have been satisfactorily addressed. In these circumstances the amended plans will not be re-notified. This is because the resident objectors are not a party to the proceedings and the experts, in making their assessment, will have regard to the matters for consideration specified in s 4.15 of the EPA Act, including any submissions made by residents.

If an agreement is reached based on amended plans, resident objectors will be informed by the Council’s solicitors where possible and, subject to the agreement of the applicant, a copy of the amended plans will be made available. Resident objectors should make their email addresses known to the solicitors to facilitate this.

If the parties reach agreement, the Commissioner must dispose of the proceedings in accordance with the agreement, provided that it is a decision that the Court could have made in the proper exercise of its functions (s 34(3) of the LEC Act). After the parties have filed as 34 agreement the Court will make orders in accordance with the agreement.If no agreement is reached the conciliation phase of the proceedings will be terminated and the matter will usually be set down for a hearing at a future date.

In Residential Development Appeals (appeals involving single houses or dual occupancies), a hearing will usually take place on the same day as the conciliation or the following day.

Council’s solicitors will endeavor to advise resident objectors of the outcome of a conciliation conference.

Hearings

Hearings may be listed before the same Commissioner who presided over the conciliation conference or a new Commissioner.

In the usual course, the hearing will commence with a site inspection at 9.30am before returning to the Court. A maximum of six (6) resident objectors can give oral evidence on site (or in Court, should the hearing commence in Court).

Resident objectors can take the Commissioner and the parties to their property, or they can speak to their concerns from outside the subject site. Any residents wishing to give evidence at the hearing should have regard to the Court’s requirements in the Site Inspection Policy, and be aware that they may be cross-examined on their evidence by the applicant’s advocate.

It is often unnecessary for resident objectors to give their evidence orally because all written submissions received by Council will be tendered as evidence in the proceedings. The Court will have regard to the submissions before making any determination.

Following the site inspection the hearing will resume in Court.

At the conclusion of the hearing the Commissioner will often reserve their decision and publish the judgement at a later date.

Council’s solicitors will endeavor to advise resident objectors of the outcome of the hearing and provide a copy of the judgement when it is available.

Amended Plans

At any stage of the proceedings it is common for applicants to seek to rely on amended plans and documents in an attempt to address the contentions raised by Council.

If amended plans are submitted following negotiations as part of a confidential conciliation conference and the Council’s experts consider that they adequately resolve the Council’s concerns and can be approved; then the amended plans will not be re-notified. This is because the resident objectors are not a party to the proceedings and the experts, in making their assessment, will have regard to the matters for consideration specified in s 4.15 of the EPA Act, including any submissions made by residents.

If the applicant is granted leave by the Court to rely on amended plans during the course of an appeal, the amended plans will be re-notified by Council if required under the relevant development control plan, to the extent that the Court allows re-notification to take place. In some instances the Court may be of the view that re-notification is not required.

The Court’s Conciliation Conference Policy and Site Inspection Policy both provide that Council should ensure that “People who made submissions to the council have a full understanding of the proposal (including recent amendments) so that any concerns expressed on-site are relevant”. As such, if the applicant is granted leave to rely on amended plans in advance of a conciliation conference or a hearing, the Council will endeavour to provide the amended plans to resident objectors before the Court date.

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